What is a “Confirming Letter?” As you might guess, it is a WRITING that confirms some point or agreement that you have reached with another party based on a verbal communication. In this day and age, it is most likely an email or text message. It could be as simple as “this confirms our discussion on the phone earlier today that your firm agrees to purchase from our firm 1,000 widgets at a price of $100 per widget. Please let me know if your understanding is contrary.” At a minimum, this would establish that on such-and-such a date, your spoke with so-and-so, and discussed that his firm agreed to purchase from your firm 1,000 widgets at $100 per widget, and that you sent an email/text message to the individual you spoke with asking him or her to let you know if you misunderstood your discussion. Now, I admit that in the event of a litigated dispute, the aforementioned “Confirming Letter” may not by itself win the day. However, at least it is one important piece of evidence supporting YOUR VERSION of what transpired. In my twenty-three years of law practice I never cease to be amazed by how often clients fail to send such a Confirming Letter, leaving them to the “he-said, she-said” Gods.
Usually, clients explain to me that business in the real world often happens at such a rapid pace that there is no time to confirm such details of every call. I believe them. We all know that in this “electronic age,” life seems to move at a frighteningly fast pace, including business transactions. But you cannot have it both ways. If and to the extent you are forced to rely on verbal agreements, if at some point you do not confirm in writing the substance of a verbal agreement, you are at risk of falling prey to “litigation induced amnesia” by the other party. In the crucible of litigation, you will be astounded at how the other party remembers things as diametrically opposed to your recollection … if they remember at all.
The Confirming Letter is not perfect. Typically it is not signed by the other party. Still, it is a “contemporaneous” manifestation from you of events at a given point in time, is generally admissible as such in evidence in the event of litigation, and is better than having no corroborating evidence to back up your version of events. If the other party objects to the points made in such a Confirming Letter, wouldn’t you want to know about it from the beginning? That is the whole point of sending the Confirming Letter.
I am not naïve. Yes there are people out there who will fabricate a problematic “response” to your Confirming Letter that you know they manufactured after the fact for the purposes of litigation. There is no shortage of dishonest people. Notwithstanding such dishonest persons, in my twenty-three years of law practice, far more often than not a client who took the time to write the Confirming Letter benefits from such action.